UR, in case you're new here, is not one of those "pundit" blogs. The purpose of UR is to try, humbly and no doubt incompetently, to see the history of 2009 through the eyes of the great reactionary historians of the Victorian era - like Carlyle, Froude, or Lecky.

Current events are part of this, but not a large part. Most of the real action in the 20th century is in the 20th century proper. This century is now dead. At some point, it will stop breathing.

But every now and then there is a spark of life, and UR is pleased to endorse the candidacy of Sonia Sotomayor for the United States Supreme Court. Here at UR, we believe Judge Sotomayor's talent, temperament and training are all in the true spirit of USG, and reflect her impressive Ivy League credentials. Indeed she reminds me of many historic American figures, such as Samuel Adams, Benjamin Butler, or Thaddeus Stevens - a judgment with which I'm sure Carlyle, Froude, and Lecky would concur. I'm confident that her vibrant presence will add as much wisdom to the Court as empathy, as much feminine charm as colorful wit, as much analytical rigor as serious scholarship. I expect the Congress will display its characteristic prudence in confirming her without delay. Ketman is thirsty work, I'll have you know.

In discerning how Carlyle, Froude or Lecky would evaluate the USG of 2009, we must adopt two methodological principles, one of which is easy and the other almost impossible. The easy principle is to keep our sources pure - we need to get our data as far upstream as possible, to prevent contamination with the omnipresent psychological-warfare, or "spin," of 20th-century democracy. This is not hard, and a good habit even if you don't give a crap about Carlyle etc.

The impossible problem is to be extremely brief. Our basic problem, as reactionary historians, is that Carlyle, Froude and Lecky do not give a crap about USG. Their opinion of USG is that it's fscked, a typical American disaster, and completely impossible to un-fsck. It is quite obvious that the confirmation of Judge Sotomayor will render it neither any more fscked, nor any less.

Therefore, I can't imagine Carlyle, Froude, or Lecky so much as mentioning Judge Sotomayor in any history of the early 21st-century. If so, it would be as an illustration rather than a pivotal contingency, and it would be a short illustration. A paragraph, maybe, at most.

And what would that paragraph say? Here at UR, we'd all like to know. I cannot get it down to a paragraph. But I think even Carlyle, Froude or Lecky would need to start with some context.

As it turns out, the selection of Judge Sotomayor actually provides a fine historical illustration of what USG is and how it does business. It is like UR 101. It is so easy to read, it reads itself.

The reactionary is always a Machiavellian. She devotes her attention to reality, not form. So, for instance, I call USG "USG" because that's what the people who work there call it. I feel that if you're interested in learning about USG, you'll learn a lot more here and here than here. (Memo to the Washington Post Company: while it's fine to begin a domain name with "who," follow it with a dash, or a word that doesn't start with "r.")

To the reactionary, USG is an unlimited government - a true sovereign under the classical law of nations. Everything that happens in the United States (if not the entire world) is either caused by USG, or allowed to happen by USG. If there is some domain of human affairs in which USG does not intervene, this is too is USG's choice. There is certainly no domain from which any force, other than USG's own will, precludes it.

Therefore, USG deserves full credit for anything good that happens in the United States, and bears complete responsibility for anything bad. Who invented the Internet? Whoever it was, USG caused it to be done. Why did USG's financial system collapse? USG mismanaged it.

It is a truism of reactionary political science that every government which is truly sovereign contains some individual or committee which holds the imperium maius - absolute power, subject to no contradiction. In USG, this committee is the Supreme Court.

While in the 20th century, the Court's imperium is maius without a doubt - not even FDR could quite break it - it is also extremely weak. This is not a contradiction in terms. Custom limits the Court's imperium to the slowest, most reactive process in slow, reactive USG: the law. Who has the final word in this process controls USG, but only in the end. The Court's sceptre cannot be used for proactive, executive action.

Thus, while the Court holds imperium maius, just as Augustus did, it cannot actually use this power as Augustus used it - eg, it cannot declare a state of emergency and rule by decree. At least, any attempt at classical imperial government by the Court would violate the true and ancient customs of the Beltway. I still think it would probably work, but there is a significant chance of just breaking the instrument.

Moreover, the Court is weakened as an institution by its nomination process. While the political arm of USG can be broadly described as vestigial - most of the real power is in the civil service, the press and the universities, all of which are strongly shielded from "politics" - the White House retains some genuine responsibilities. One is nominating judges.

Given the pendulum of party politics, in which each side must sully its reputation in turn by serving as figurehead of the good ship USG, and the biological facts of life expectancy (note that Judge Sotomayor's diabetes reduces her expected term by 15 years), this creates a Court on which the most important fact is not the identity of the members, but their partisan ratio - as in any legislative body. Any truly studly Court would choose its own replacements, like the Israeli Supreme Court.

It so happens that Judge Sotomayor is replacing Justice Souter, a typical late 20th-century Justice - an Outer Party nonentity who betrayed those that brought him to power, and became a consistent Inner Party vote. Thus, the replacement does not change the partisan ratio, and again is interesting only as an illustration.

(This pattern of systematic treason (there's really no other word for it) is a legacy of the era in which Inner Party domination was so total that the Outer Party had no scholarly institutions at all. With new institutions such as the Federalist Society, it probably won't happen again. The Outer Party has no shortage of sound, talented ideologues. This, in itself, is a problem for the Modern Structure - though not yet a major one.)

We are finished with our context. This, in UR's best judgment, is the reality. You know the theatrical production above it. Now, our illustration. I will work entirely with direct sources.

First, let's listen to Judge Sotomayor's famous "policy" outtake: 30 seconds. Please watch it again now, if you haven't seen it already. This is my transcription, which is as exact as I can make it. I feel the italics are Judge Sotomayor's:

"all of the legal defense funds out there... um... they're looking for people with court of appeals experience... because - it is - court of appeals is where policy is made. And I know - and I know - this is on tape and I should never say that, because we don't make law. I know. [audience laughter] Okay. I know. I'm not promoting it - I'm not advocating it - you know. Okay. [more laughter] Um...

Now: this clip is from a real event. It was not forged, it was not altered, it happened. You can believe your own eyes and ears on this one. At a certain point, when the spin gets so intense that you feel like curling up in a little ball, you just have to go back and start with your own peripheral nervous system - because if the Reptoids can own that, they can own anything.

Starting from this point of unconditional truth, I want to examine two points about the clip. The first is the remarkable tone shift in Judge Sotomayor's voice, right after "policy is made," which is almost what linguists call code-switching. If we didn't have the video, we could almost believe that two different speakers had been spliced together. The second, of course, is the laughter.

Perhaps you were linked to this post by accident, and you are not actually a reactionary. If so, please ask yourself before you continue: what is your explanation of these two phenomena? Think about it and save it up. You'll be comparing it to mine.

First, the code-switching. Judge Sotomayor's tone and diction as the clip begins is an acrolect which I recognize immediately: it is the standard teaching voice at any top-ranked university. I am confident that the average Ivy League law school is taught more or less entirely in this tone. Indeed, since Judge Sotomayor was never a law professor, and since she is speaking at Duke, it would be surprising if she were completely self-confident about her status on this occasion. This would lead us to expect an almost exaggerated correctness of diction.

It is always perfectly permissible for the professor to drop out of the arch academic tone and into a standard, informal American basilect, as Judge Sotomayor does here. Indeed it is intrinsically humorous - although it is also humorous, of course, to reverse the trope.

And Judge Sotomayor is in need of humor. Because in the second half of the clip, there is no way to mistake the context of the discourse. Judge Sotomayor is apologizing.

All comedy is drama. If you don't have a dramatic shift, you are not funny. The audience laughs, so we can tell that Judge Sotomayor is, indeed, funny. Why is she apologizing? Has she made a boo-boo? If so, what? And why is the apology funny?

At this point, we shift abruptly from the top end of the judicial food chain to the bottom. Judge Sotomayor has indeed made a boo-boo. And what was her boo-boo? She forgot that the meeting was being taped. And then she makes a second boo-boo. She says exactly this - on tape. And the whole room cracks up.

Because, you know, at the other end of the law - the business end - it's really quite common for people to know, as a matter of professional responsibility, whether or not they are on tape. When they think they aren't but they are, fascinating things can be recorded.

And if this wasn't a fascinating thing, I wouldn't be wasting your time with it. But clearly, Judge Sotomayor has no actual fear of prosecution. We are not at that end of the law. We are at the other end - the majesty end. Whew. But then: why apologize? What's funny?

Let's go back to the first half of the clip. Play it again, if you have to. Again, there is an appropriate context for the discourse in which Judge Sotomayor is engaging: academia. Note that she is speaking at Duke. And were she not a public official speaking on the (taped) record, a fact she appears to have momentarily forgotten, no one at Duke would raise an eyebrow.

To understand the full context of Judge Sotomayor's reasoning, we need to rewind the tape a century and look at America a century ago. Judge Sotomayor would no doubt be comfortable, if not perhaps on tape, in describing herself as a "progressive." So indeed would Herbert Croly, founder of the New Republic and author of The Promise of American Life (1911). And while the word has taken a twist or two over the century, it basically refers to the same movement.

The original progressives (or Progressives) were original and iconoclastic thinkers, believe it or not. Just as we do here at UR, they found themselves grappling with difficult truths. One of these truths, which has revealed itself again and again ever since Plato, is this: democracy doesn't work. Or, as Croly puts it:

Majority rule, under certain prescribed conditions, is a necessary constituent of any practicable democratic organization; but the actions or decisions of a majority need not have any binding moral and national authority. Majority rule is merely one means to an extremely difficult, remote, and complicated end; and it is a piece of machinery which is peculiarly liable to get out of order. Its arbitrary and dangerous tendencies can, as a matter of fact, be checked in many effectual and legitimate ways, of which the most effectual is the cherishing of a tradition, partly expressed in some body of fundamental law, that the true people are, as Bismarck declared, in some measure an invisible multitude of spirits — the nation of yesterday and to-morrow, organized for its national historical mission.

Here we see the seam between progressivism and reaction, under glass. Here at UR, we are perfectly happy to observe that majority rule is an arbitrary and dangerous piece of machinery, which is peculiarly liable to get out of order.

To me, what this says is that democracy is bad political engineering. To Herbert Croly, what this says is that democracy is a higher spiritual truth, distinct from the "politics" of mere majority rule - cue the invisible multitude of spirits and the national historical mission. With these mystical forces, it is not difficult at all to worship democracy and despise politics - a position held by hundreds of millions of intelligent people today.

But I digress. If we look at USG in the era of Herbert Croly, we see how justified his observations were, because what we see is a sort of democratic klepto-plutocracy. The real USG of 1909 is not too different from the progressive image of the Bush administration. To put it baldly, the levers of politics had been captured by an alliance of bosses and plutocrats. America had real industries then, and those industries had real captains. It also had political machines, as it has today. Croly writes:

The consequence has been, however, a separation of actual political power from official political responsibility. The public officers are still technically responsible for the good government of the states, even if, as individuals, they have not been granted the necessary authority effectively to perform their task. But their actual power is even smaller than their official authority. They are almost completely controlled by the machine which secures their election or appointment. The leader or leaders of that machine are the rulers of the community, even though they occupy no offices and cannot be held in any way publicly responsible.

Indeed. But in fact, by any reasonable historical standard, the quality of government that American klepto-plutocracy produced was not bad at all. Perhaps it can be compared to the klepto-plutocracy now operating in China, whose methods are also unseemly, and whose results are also quite good. But surely no such government can be in any sense optimal. China's sure isn't, and nor was the McKinley administration. Thus a Croly had every right to expect improvement.

And what offended the early progressives most of all, quite reasonably, was the corruption of the system. Recall UR's definition of corruption: a thing is corrupt if it is not what it appears to be. No one can possibly argue that Gilded-Age USG was what it appeared to be. On the other hand, it is quite difficult to argue that the 20th century improved USG's customer-service quality.

There is an unintentionally-wonderful mural near my home in San Francisco: the Market Street Railway Mural. If you doubt the above conclusion, have a look at the mural. My caption is that what we see in this mural, from right to left, is progressivism improving Market Street in the imaginary future, and devastating it in the actual past. Hopefully the reactionary can be excused for his lack of hope for the UN ecotopia, pleasant though this Embarcadero would indeed be.

Alas. When we analyze the progressive mind, we are dealing by definition in abnormal psychology: with the problem of the mind warped by power. Tolkien never told us what his great work was about, but his politics were no secret. No fellow reactionary can believe but that when he wrote of the Nine Rings that Sauron gave to mortal men, Tolkien was thinking of such as Keynes, from whom power hissed out like a snake. One has to wonder if the two ever met.

Croly was certainly an American equivalent. And another grim rider is Walter Lippmann, whose Public Opinion (1922) is perhaps the most frank discussion of how the new, twentieth-century, progressive USG operates. If you read both Croly and Lippmann, you have a pretty solid start on the founding mindset of progressivism.

When a Ringwraith hisses of invisible spirit armies and national historical missions, it is not wise to take him at his word - or ignore him. These writers are not to be believed in any way. Their texts are not authorities, but evidence. Any approach to them must be forensic - in a word, Machiavellian.

The Machiavellian gist of the early progressive agenda - is that, since USG is not being properly directed by the mechanisms defined in its actual, written Constitution (as reconstructed in the 1860s), it must be directed through an alternate channel. That is, though nominally directed by its political arms, which depend on majority rule and are therefore dysfunctional, it must be actually directed by professional experts, who are above politics. In case you hadn't noticed, this has been pretty much the case since 1933.

Unfortunately, there is just one small problem with the Croly-Lippmann design. By working surreptitiously and dishonestly to direct the State, whose humble and disinterested servants they claim to be, the Platonic guardians these thinkers postulate must violate any professional codes of honor that they may have. It is impossible to be dishonest in one field of endeavor and honest in another.

In other words, the progressive movement is actually far more corrupt than its banal kleptocratic predecessor, because it corrupts the very fields of knowledge on which all successful governments must rely. In a society steeped in science, law, history, and economics, it seems remarkably attractive to shift the foundations of one's sovereign away from robber barons and machine politicians, and toward scientists, lawyers, historians, and economists. (And journalists, of course. But the journalists of 1909 were already quite corrupt enough.)

However, from a long-term perspective, the decision is fatal. Robber barons and machine politicians will never be nice people, but both professions are competitive enough to prevent much decay. Consider the political conditions of the Italian Renaissance. It is impossible for power to corrupt a kleptocracy: a kleptocracy is already corrupt. This does not render the structure ideal, but it lends it a certain long-term stability which is of great value.

It is possible to corrupt science, law, history, and economics. It may be impossible to uncorrupt journalism. For a society ruled by bad journalism and condemned to bad science, bad law, bad history and bad economics, there is no exit but destruction. I think we still have some good science. Perhaps there is a little good history, and some decent law. For economics, there is just no hope. Fuzzy fields rot fast.

When you ask experts, who claim to be performing a technical service in which individuals are interchangeable, to wield power - for example, when you exempt their advice from any independent review, or even allow them to control their own funding streams - you are basically sliding the Ring on to the collective fingers of some of the most important professions in a modern human society.

For example, the scientist is the figure in modern society for whom it is easiest to cheat, because no one but a philosopher of science can determine whether his work is really science. Falsified science is easily detected; pseudoscience is not. And there are not a lot of philosophers, ever. And next to detecting pseudoeconomics, detecting pseudoscience is a piece of cake.

And if you can distort this input to the government, you have hacked the government. You, not the old boss machine, are in the driver's seat. And the worst of it is - you haven't even solved the frickin' problem:

The leader or leaders of that machine are the rulers of the community, even though they occupy no offices and cannot be held in any way publicly responsible.

The progressives have transferred this invidious position - job description, Ringwraith - from ward heelers to the scholarly tradition of the West. In the process, they have irreparably corrupted the scholarly tradition of the West. And they have not gotten rid of the ward heelers. At least in 1909 there were no (supposed) scholars who were also ward heelers. I'd take ten Boss Crokers for one Rajendra Pachauri.

And suddenly, when we get to Croly on law, we see the intellectual pedigree of Judge Sotomayor:

The conservative believer in the existing American political system will doubtless reply that the lawyer, in so far as he opposes radical reform or reorganization, is merely remaining true to his function as the High Priest of American constitutional democracy. And no doubt it is begging the question at the present stage of this discussion, to assert that American lawyers as such are not so well qualified as they were to guide American political thought and action. But it can at least be maintained that, assuming some radical reorganization to be necessary, the existing prejudices, interests, and mental outlook of the American lawyer disqualify him for the task. The legal profession is risking its traditional position as the mouthpiece of the American political creed and faith upon the adequacy of the existing political system. If there is any thoroughgoing reorganization needed, it will be brought about in spite of the opposition of the legal profession. They occupy in relation to the modern economic and political problem a position similar to that of the Constitutional Unionists previous to the Civil War. Those estimable gentlemen believed devoutly that the Constitution, which created the problem of slavery and provoked the anti-slavery agitation, was adequate to its solution. In the same spirit learned lawyers now affirm that the existing problems can easily be solved, if only American public opinion remain faithful to the Constitution. But it may be that the Constitution, as well as the system of local political government built up around the Federal Constitution, is itself partly responsible for some of the existing abuses, evils, and problems; and if so, the American lawyer may be useful, as he was before the Civil War, in evading our difficulties; but he will not be very useful in settling them.

(Note the interesting charge that the Constitution "provoked the anti-slavery agitation." That sure ain't one ya hear these days! What can Croly possibly mean? Why is there a watermelon there?)

At the point when Croly wrote, American law was in the thrall of the belief that now would be described as legal formalism. Legal formalism is the belief that: there is such a thing as law; the law means what it says; some things are legal, and other things are illegal; etc. Generations of lawyers were indoctrinated with this medieval obscurantism. From Hammurabi until Herbert Croly, no one had ever begun to suspect that it might just be wrong.

Seriously. I am not making this up. There has been some recent interest in the term, or it would not be in La Wik - but there is no surviving legal-formalist tradition in America. In the generation after Croly, it was replaced by the tradition of legal realism. For example, the Uniform Commercial Code was principally drafted by the noted legal-realist Karl Llewellyn.

Legal realism succeeded so completely that its acolytes succeeded to actual responsibility, thus invoking Conquest's law - everyone is reactionary on the subjects he understands. It therefore had to be succeeded in the '60s and thereafter by critical legal studies and the even more aggro critical race theory, for which even the Wikipedia page is wreathed in pure Stalinist spittle. Do read these pages, if you can stomach looking that long into the eye of the Ring.

The content of all these philosophies is the same. Let me summarize, in Machiavellian terms.

The first essential ingredient is a pinch of tu quoque. This spice is to progressivism as cilantro is to Mexican food, so we cannot be surprised to find it here. To believe that you, as a lawyer, should dishonor everything your profession has held to be good and sweet and true for the previous four millennia, indeed dishonor the notion of truth itself, and install a Judas hole in the veil of Athena, your soul has to be pretty seriously bent. There are only two instruments that can do the bending: fear and hate.

Thus, those who break the rules will always first argue that their enemies, real or imagined, are breaking the very same rules: tu quoque. Thus, a judge might rule against the workers because there was a bad egg on his plate this morning. Or because he has stock in the company. Why, then, how can it be wrong for us to rule against the workers? Most judges are white men, and most white men are at least a little racist. Why, then... und so weiter.

In the Machiavellian furnace, this is the turd down to which all these bloviations boil. Here we see it in the words of Judge Sotomayor herself:

Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow [sic] of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

If I may digress for a moment - note, also, that this typical diversicrat, this DMV supervisor, this jurist of renown, can barely write. She literally does not know how to use a comma properly. Read the whole speech linked above - not a transcript, but a prepared text that was published in a law journal. Mother Jones has noticed, too. Keep it up, guys! Speak truth to power!

Understandably, Ms. Sotomayor almost flunked out of Princeton her freshman year, because she couldn't write. Oddly enough, she later managed to graduate summa cum laude. Perhaps this reflects a remarkable, but temporary, improvement in her writing skills. Maybe it was that she was good at math, not writing, and took a lot of physics classes to get her GPA up. Or perhaps it reflects the fact that she majored in Puerto Rican studies, ie, racism. Can we know? We cannot.

It might well be appropriate to classify Judge Sotomayor as a critical race theorist. On the other hand, it might not. I don't know the details well enough. However, her suspicious interest in human biodiversity (HBD) is quite compelling:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum

Perhaps she's been reading Steve Sailer. Or perhaps she's more in the Leonard Jeffries line? I would certainly be fascinated to hear Judge Sotomayor explain her perhaps-idiosyncratic views on "inherent physiological differences."

In any case, enough with the mockery - back to the mindset. Now, a mindset can exist only in the minds of those who have a mind. Eg, who know how to use a comma. There are plenty of mindless progressives, but there are also quite a few mindful ones.

So tu quoque might be sufficient for the mind of a mediocrity. And if Judge Sotomayor is anything but, I have seen no convincing evidence of it. This in itself is a historic corruption. When I was a kid, I wanted to grow up and be on the Supreme Court, and I sure as hell knew how to use a comma.

But we have not really gotten to the secret of the laughter. We have made progressivism seem mean and petty, a reflection which is not true to life. If tu quoque was all there was, there might still be laughter on the soundtrack to that speech, but it would be shriller, colder laughter.

Here is a quote from the blogger Revere at Effect Measure, who claims to be one or many senior officials in USG's public-health apparatus. Obviously, these are some of the best people at USG. Obviously, many of them are children of the '60s. Revere's insights on influenza are certainly pertinent and sincere, but often he veers off into social and political topics which reveal his perfect orthodoxy in the great tradition of Herbert Croly. He writes:

There have been a lot of dismaying things about American politics since Reagan, but for us surely one of the most disheartening was the continual denigration of public servants. Politicians ran for office on platforms that put down anything done by the public sector even as their own corrupt hands yanking on the public money teat. It wasn't enough to praise the wonders of private enterprise. It had to be done at the expense of tearing down the virtues of a common purpose. The result was to marginalize and impoverish public service, what should be the noblest of callings, not the most trivialized. Instead young people were fed the idea that hedge fund managers and Wall Streeters were the Best of the Best.

That was then. Now a nascent spirit of civic engagement has emerged from the 2008 campaign and found a responsive and sympathetic ear among the younger generation and even some of us oldsters. Talking about the value of civil engagement is one thing. Enabling it is another. So I'm glad to share an email I got today from Danny Modovan, Director of the Jobs for Change initiative at Change.org.[...]Of course we were delighted to endorse the vision and we did.

Etc, etc. Of course, we've all seen this kind of garbage, whose very unreadability betrays its pure cant. It is particularly interesting to see it mixed with what looks like perfectly sound science. But that is not unusual, either.

Nonetheless, behind the cant, here is true belief. It is as sincere as any Catholic's loyalty to his church - an unconditional institutional attachment. We can be sure Revere is attached to the UN, for the same reasons. What would the Pope have to do, for Catholics to stop believing in the Catholic Church? He could come out on the high altar at Christmas mass in St. Peters and rape a goat, and the Church would get either a new Pope or a new sacrament.

The faith of Revere is the faith that, here at UR, we call Universalism. We can use the tools of reason, of course, to belittle and mock this faith - just as we can use them to belittle and mock Catholicism. But we cannot belittle or mock those who hold either, because all of us stumble through life in a maze of delusion - Catholics, Universalists, and mere reactionaries.

When you hear someone in 2009 use a phrase like virtues of a common purpose (meaning, the spiritual satisfaction of being a government employee), which could have come straight out of Herbert Croly or any of a hundred writers of a century ago, it is the equivalent of finding a preserved sequence in comparative DNA analysis. You know that here you have found something important, something that works, something that appeals to the human heart. Whatever it is, it is something to be respected.

My guess is that Judge Sotomayor's audience for that speech consisted largely of people with minds, and my guess is that - if they share the general philosophy of progressivism - they would respond in the same way as Revere to "Jobs for Change" at change.org. These are people who are convinced, as Croly was, that they are building the New Jerusalem. No matter that Croly, too, was building the New Jerusalem! Progress takes time, and its enemies are powerful.

For any cause so great, no effective tactic can be rejected. Especially not when the opponent is so powerful, ruthless, and unprincipled. Thus the tu quoque - which tends to operate on the principle of cet animal est très méchant, quand on l'attaque il se défend. These two blur to create the mindset that could laugh, in that room, at that time, in that way. A laugh which is confident, warm, but somehow... predatory.

I actually can speak personally to this laugh. I personally have emitted it, though in a completely different context. The context was that of an old employer of mine, which had devised an extremely aggressive strategy for participation in standards forums. The basic gist of the strategy was, as always, to block progress on standards in which progress favored our competitors. Without, of course, admitting any such thing. In my specific memory, the CTO of the company was talking about how these tactics would be used to "screw Nokia," or words to that effect.

And the laugh was the same, not just because screwing Nokia would shift money from Nokia's pockets into ours, but also because our engineering tended to be better than Nokia's. Thus, by retarding Nokia's work and advancing ours, the result would be better standards. And thus, our manipulative and dishonest conduct was actually serving the industry as a whole.

So Judge Sotomayor's audience that day went through the following mental process. They realized that Judge Sotomayor had committed a Kinsley gaffe - hardly surprising, considering her skill with the comma. Then they realized that, by mentioning her fear of the tape, she had committed a double Kinsley gaffe - not only had she described the reality of USG, not the fantasy that keeps the voters going back into the little booths, she had brought up the difference between the two.

And the audience laughed, because they realized that this was in some sense shameful - just as it was shameful of us to block Nokia's standards initiatives, by raising bogus technical obstacles. Again: any divergence between appearance and reality is essentially corrupt. At the very least, it amounts to a deception.

There is thus a slightly diabolical tone to this laugh. It is almost the laugh of sinners called out by a preacher, except that your typical sinner does not conceive himself of sinning for a higher good. Indeed there is another, older, name for "legal realism" - antinomianism. This is often found in the presence of extreme Protestant sects, such as Universalism.

We know policy is made in appeals court, but we don't say policy is made in appeals court. Don't talk about Fight Club, Judge Sotomayor! Similarly, it would be a definite error to admit in an open meeting that the bogus technical obstacles are, in fact, bogus obstacles presented for the purpose of thwarting Nokia.

And the lie is never exactly a secret - per se. Progressivism is distributed and adaptive, not organized and conspiratorial. Obviously, everyone around the appeals court knows that the appeals court exists to make policy. And everyone in the working group knows who, exactly, is stalling.

Yet if the lie is admitted, at least admitted too often, real consequences may ensure. It's not like Judge Sotomayor has blurted out the formula for the atomic bomb. Nonetheless, the camouflage machine can only crank out so many amps, so it's definitely better if there are as few continuity errors as possible.

Thus we hear four things in the laughter: a bit of shame, a bit of the thrill of power, a bit of danger, and a bit of smug self-righteousness. Government does not always do evil in this state of mind, but this is the state of mind it must adopt in order to do evil.

And lastly, there is also the feeling of camaraderie in the transcendence of order. This truly is the holy brotherhood of the antinomian - excused, like demon monks, from any limit on the appetite. As Fidel Castro says, the honey of power is sweet. It is sweeter yet in the presence of righteousness. And those who share this taste are brothers forever, like tag-team acid-trippers. What sin can this comradeship not excuse? And what foe can defeat it?

"She just believed in the mission,” Luis Alvarez, a former chairman of its board, said of Ms. Sotomayor. “This was a highly refined group of individuals who came from the premier academic institutions. It was almost like Camelot. It was a wonderful growth period.”

Alas! Why the past tense? Is LatinoJustice-PRLDEF no longer so highly refined? Does it no longer stir the most delicate and elegant passion in the hearts of of its own staff? Does it no longer recruit from the premier academic institutions? After this wonderful growth period, what happened? Sadly, I can guess - Trotsky turned into Brezhnev. All things age.

Let us roll the clock back, briefly, and look at the level of dishonor briefly. Our first exhibit: a little ransom note sent by the young Ms. Sotomayor to Princeton, in 1974. Here is our highlight:

Yet statistical evidence is not the total concern or complaint of the Puerto Rican or Chicano students — what is terrifying to us are the implications. The facts imply and reflect the total absence of regard, concern and respect for an entire people and their culture. In effect, they reflect an attempt — a successful attempt so far — to relegate an important cultural sector of the population to oblivion.

In other words, Princeton University - in 1974 - is engaged in an active racist conspiracy against Puerto Ricans. Similarly, Hitler is alive and well and living on the dark side of the moon. This is either pure delusion, or pure shameless mendacity. Neither reflects well on the character of the young Ms. Sotomayor.

Almost every sentence in this letter, whose thinking is just as slovenly and sordid as its writing, yields priceless rewards to analysis. But here is perhaps the best:

Puerto Ricans constitute 12 per cent of the population in New Jersey. Immediately surrounding Princeton — New Brunswick, Trenton, and Newark — they constitute approximately 15 per cent of the population.

Now, why would this be relevant? Remember the complaint: not enough students and faculty members of "Chicano" (why doesn't anyone say "Chicano" anymore?") descent. But Princeton both hires and admits from a pool which is national, if not international. It is not a New Jersey university. It just happens to be in New Jersey.

Lurking under these innocent demographic statistics is a simple threat. There are a lot of Puerto Ricans near Princeton. Therefore, we can seduce them with our secret Boricuan wiles, of which you gringos know nothing, and bus them here to cause trouble. Granted, Newark is an hour away, but what's an hour on a bus? If you think nothing like this has ever happened, you could not be more wrong - although most of it was confined to the late '60s and early '70s. But then again, that's when this letter was written. And the jobs didn't go away, either.

Could a future Supreme Court justice think in such a sordid, material way? Could this really be the substance of her concern as a young woman - give my kinsmen jobs, or we will (a) sue you and (b) bus in a mob to rough you up? Alas, it is not at all surprising. The Sonia Sotomayors of the world got their jobs, and have served out long and happy careers as diversity bureaucrats.

And it is quite possible to go lower. Consider this impeccably-sourced graf from La Wik:

On the recommendation of Yale professor and future judge José A. Cabranes, Sotomayor was hired out of law school as an Assistant District Attorney under New York County District Attorney Robert Morgenthau starting in 1979. She said at the time that did so with conflicted emotions: "There was a tremendous amount of pressure from my community, from the third-world community, at Yale. They could not understand why I was taking this job. I'm not sure I've ever resolved that problem." [...] She felt the lower-level crimes were largely products of socioeconomic environment and poverty, but had a different attitude about serious felonies: "No matter how liberal I am, I'm still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous." Hispanic-on-Hispanic crime was of particular concern to her: "The saddest crimes for me were the ones that my own people committed against each other."

Isn't this amazing? How can this just not amaze you? "No matter how liberal I am, I'm still outraged by crimes of violence." It's like listening to a Holocaust denier talk about how saddened he is by the very real suffering of the Jews.

Shall we go there? Oh, yes. Why don't we go there. Let's consider all the "lower-level crimes" - such as "minor assault cases" - that occurred in New York in the '70s and '80s. No - let's just include muggings at knifepoint, in cases where the assailant is a Puerto Rican and the victim is an elderly Holocaust survivor.

Can we picture this set? Is there any reason we can't? How many members of the set do you think there are? 10? 100? Call it a hundred. And over each of these events, each of which actually really truly happened, the wise Latina spirit of Judge Sotomayor, empathetic to a T, is hovering. And each time it happens, she empathizes to the assailant: no matter how liberal I am, I'm still outraged by your crime. But at least you didn't hold up a fellow Chicano.

Judge Sotomayor, like Warren Hastings, stands amazed at her own moderation. She actually believes that some crimes should be punished, even when they are carried out by her own people. Perhaps thanks to some residue of Catholic school, she cannot quite swallow the full Frantz Fanon line - or should I say, Franz Fanon?

This is what Sam Francis called anarcho-tyranny - sadistic, wilful domination not by the direct agents of the state, but private parties acting with the toleration and consent of the state. It is quite literally the same "boys will be boys" principle that old Wilhelmine judges applied to Nazi street violence under the Weimar Republic. And it has exactly the same effect: leveraging extralegal force to produce political power.

Oncce you see this, of course, it sticks in your head and stays there. What we are looking at here is simple: a mafia, united by an adolescent status fantasy. So when a respected journalist, at a respected publication, writes:

Judge Sonia Sotomayor is smart and sharp, and her formidable track record on the bench should put to rest any lingering doubts that she isn't. (Speaking of which: Why was the left, or at least the center, criticizing one of its own?)

The reactionary's only feeling is sadness. USG is enormous and very old, and many, many people believe deeply that it is either intrinsically righteous or, if not, susceptible to reform. They certainly are not aware that it consists of a set of individuals who, whatever their actual IQs and grammatical skills, are moral 13-year-olds who think real life is a game of Fight Club.

What saddens me especially is my confidence that Herbert Croly, Walter Lippmann, and even later Ringwraiths such as Arthur Schlesinger, Jr., would probably have no choice but to agree with me, Carlyle, Lecky and Froude. This narrative is sordid and pathetic, truly Third World. It is simply impossible to respect a USG that appoints, as a justice of its highest court, a woman who is confused by the concept of a comma, solely on account of her unusual pigmentation. There is certainly no chance that history will spare it - at least, not forever.

Fortunately, USG does not demand our respect. It asks only for our obedience, and here at UR we are always glad to provide it. That's why I'm happy to provide a strong blog endorsement of Judge Sotomayor for the Supreme Court. Jurists like her are the face of USG's future - and the future cannot arrive soon enough. Here at UR, we hope for nothing so much as change.

87 Comments:

Well now that the outer-party talking heads have been chastised, the Boricuan's path to ensconcement will be unobscured (unless some lone Senator actually does his job -- but since we started voting for them that has hardly happened).

All hail the Emperor...

I didn't realize we were living in the Byzantine East until a few short months ago.

I suppose the Western Roman Empire would be worse -- more barbarians and what-not.

"My guess is that Judge Sotomayor's audience for that speech consisted largely of people with minds, and my guess is that - if they share the general philosophy of progressivism - they would respond in the same way as Revere to "Jobs for Change" at change.org. These are people who are convinced, as Croly was, that they are building the New Jerusalem. No matter that Croly, too, was building the New Jerusalem! Progress takes time, and its enemies are powerful.

I was definitely surprised, myself, at how badly she came off the first time I viewed the video. Usually these gaffes don't really seem to "ring" in context on video, but everything about it, her tone of voice, the understanding laughter of the audience relating that they knew they shared in the joke, the dismissive way she uses her hand when she says "you know", makes it quite effective Youtube propaganda.

So you think it fortunate USG does not demand our respect? Famous last words. Surely this would be a natural progression. As Feodor said, it is not possible to abuse me without first insisting I sing your praise. We're singing.

The Machiavellian gist of the early progressive agenda - is that, since USG is not being properly directed by the mechanisms defined in its actual, written Constitution (as reconstructed in the 1860s), it must be directed through an alternate channel. That is, though nominally directed by its political arms, which depend on majority rule and are therefore dysfunctional, it must be actually directed by professional experts, who are above politics. In case you hadn't noticed, this has been pretty much the case since 1933.

This is exactly the kind of hand-wavy nonsense that hides in -- and at the same time serves as the foundation of -- your expansive prose. You're trying to prove that government is "actually directed by professional experts" by pointing out that politicians now have expert advisers.

Well, look, if Ben Bernancke "directs" Obama to do something, Obama is free to refuse. The professional experts answer to him, not vice-versa. The same of course was true for Bush, who fell under the sway of some really bad advisers yet nevertheless remained "the decider."

If I may digress for a moment - note, also, that this typical diversicrat, this DMV supervisor, this jurist of renown, can barely write.

Now you're just being unfair. She may not be a great writer, and indeed may have violated a rule or two in a style guide, but this is not the sort of thing you can point to for evidence of her incompetence or stupidity, as you do several times in this peace.

Take your implication that "USG" answers to no-one. You wave your hands towards the fact that civil servants are not elected and pretend that you've proved your case. But that's just nonsense. Civil servant X might wish A or B, but ultimately he answers to elected officials (and possibly the appointed court, which is one-degree-removed from being elected.)

Now to the meat:

It is - court of appeals is where policy is made.

Obviously this is true. You say as much when you call it a "Kinsley gaffe." Your implication is that a) this is a bad thing and b) it's a progressive thing.

BUT THAT'S WHAT COURTS DO. It's not a "progressive" thing -- it's the nature of judgement. That's the whole freakin' point.

The legislature can draft law A which may or may not contradict law B or Constitutional Article X. It's the judge who sorts that all out and in effect finalizes the law -- "makes the policy."

More dishonest leaps of logic:

Santamayor's quote:

The facts imply and reflect the total absence of regard, concern and respect for an entire people and their culture. In effect, they reflect an attempt — a successful attempt so far — to relegate an important cultural sector of the population to oblivion.

You're "interpretation:"

In other words, Princeton university - in 1974 - is engaged in an active racist conspiracy against Puerto Ricans.

Note just how far you have to leap to slander her -- from "total absence of regard, concern and respect" to "active racist conspiracy." Or were you fooled by her correct use of a comma? "In effect, they reflect an attempt..." IN EFFECT, as in possibly without intent. More or less the exact opposite of your "interpretation."

And the reason Santamayor was apologetic about it is exactly because it's a Kinsley gaffe -- it's obviously true, but something you're not supposed to say for political reasons.

The right has managed to make "activist judges" into a talking point despite having more "activist" judges on their side by any reasonable metric. (E.g. overturning laws pass by elected officials.)

She's not supposed to say it for political reasons, because the right will beat her about the head and shoulders with it until their idiot voters get worked up into a frenzy. Anybody remotely intelligent knows the statement is simply true, and equally true for left and right.

> despite having more "activist" judges on their side by any reasonable metric. (E.g. overturning laws pass by elected officials.)

Not such a good metric. Suppose unconstitutional measures are proliferating. In that case, strict constructionists will of course be overturning more of these measures - but that isn't really what's meant by the phrase judicial activism.

Not such a good metric. Suppose unconstitutional measures are proliferating. In that case, strict constructionists will of course be overturning more of these measures - but that isn't really what's meant by the phrase judicial activism.

Find me a definition of "judicial activism" which does not include what the conservative justices did in Bush v. Gore or what they do when defending "executive privilege."

Why doesn't Mencius comment anymore? I just started reading UR and reading through the archives I noticed that Mencius commented and responded to a lot of the comments in the past. Was there a troll problem or something in the past after which he just stopped bothering? Or did he just stop cuz he felt like it?

JA - do you actually believe that it's a reasonable use of language to describe the universal role of judges as "making policy"? I mean, the whole distinction between the legislature and judiciary is that one makes the law and the other interprets it. The actual creation of policy - the deciding of the ends and the planning of the means - is not what judges normally do.

If you want to hold onto some tendentious line of reasoning that says since judges affect what the final law will be and I can therefore plausibly say that judges are "making policy" and still be considered technically correct, well then whatever, but that's not the common sense usage.

Teddy - Dunno, but I think he said he's been too busy since his kid was born.

As is often the case at UR, sometimes the obiter dicta offer me more opportunity for comment than does the thesis.

"A thing is corrupt if it is not what it appears to be."

"It may be impossible to uncorrupt journalism."

If modern journalism is corrupt, it is so because it is not what it appears to be. What modern journalism appears to be - or at least, wants to appear to be, is "objective" - "all the news that's fit to print." What it actually is, of course, is anything but. Bias is less often expressed in an obvious slant in reporting as in the determination of what is considered a story and what is not. We get not all the news that's fit to print, but all the news that fits.

Journalism was, by UR's definition, not corrupt, or at least less corrupt, back in the days when news reporting was a rather raffish trade, and giants like Col. Robert McCormick and William Randolph Hearst ran papers that were unashamed reflections of their particular points of view. The freedom of the press, as has been wisely observed, belongs to the one who owns it.

This kind of honestly labelled reporting went out of fashion with the rise of university journalism schools. They encouraged the idea that a newspaper owner's active involvement in editorial decisions was "unprofessional," and this attitude, combined with the changing economics of the news business (which favored consolidation and management of the enterprises for economic return rather than the promotion of a publisher's views) resulted in the substantial uniformity and unanimity of news coverage. Masquerading as objectivity, what it amounted to was the management of news coverage according to the concealed bias of senior "professional" jornalists rather than the overt bias of a McCormick or Hearst.

I believe we are witnessing the early stages of journalism's uncorruption. It is a purely accidental byproduct of another wave of change in the economics of the news business. There are several components: the burgeoning of cable television, for example, broke the oligopoly of CBS, ABC, and NBC. Newspapers, which have declined steadily though slowly for fifty years in the face of competition from television, are now succumbing rapidly to an attack they never anticipated, namely the loss of their classified advertising revenues to operations like Craigslist. Newspapers in Seattle, Los Angeles, Minneapolis, and Chicago have now entered bankruptcy.

Emerging as a new medium for news is Internet-based reportage. As it has in so many venues, the Internet has not so much provided radical innovation as it has made doing something that was once expensive much cheaper. Cheapness of access to it has given thousands or perhaps millions something comparable to what ownership of the press did for a few, much more expensively, a century ago. There is, as could be expected, as much overt bias in their reports as there once was in the partisan journalism of the nineteenth century. Yet, taking this into account, a curious reader is more likely than not to check several sources for corroboration, and thus to form a better informed understanding of events than he would have been likely to do by having taken for granted the factuality of news as reported by the New York Times and read on network television by Walter Cronkite or Dan Rather.

Overt bias is better than the bias cloaked under an air of 'objectivity' that has characterized mainstream media reportage for the past fifty or more years. We should welcome it as truth-in-labelling - it is what it seems to be, rather than otherwise. Given its influence over time we may even see it uncorrupt paper and broadcast journalism.

JA, someone who either doesn't know or doesn't care about the difference between "your" and "you're," or the difference between "piece" and "peace," really shouldn't try to lecture people about their grasp of the language.

Please reread what MM said about legal formalism. while some lawmaking is unavoidable in judgment, generally, not much is necessary. When the law talks about a number between 12 and 20, the judge is making stuff up when he arbitrarily uses 16. But he is doing something altogether different when he decides that "evolving standards" and penumbras mean the law really says 97. A recipe calls for a pinch of salt, and you are claiming every cook should just throw it out and make whatever he feels like.

Judging as lawmaking is a progressive thing. It is true that any judge can do it, and you right to abhor Bush v. Gore. But come on. Most of the judicial activism is on the left, for the simple reason that the left are the people desperately concerned to build the city on the hill. The right already have what they are trying to defend; it is what exists. You don't need to make new stuff up for that.

It is not surprising someone would write a comment like this, being as we've been living in the progressocracy since FDR. But it's still disappointing that it is you, JA.

Let's get a few more examples in play. Consider Scalia's famous dissent in Lawrence v. Texas. Now take the example of W. Arthur Garrity Jr. in Boston. Can we determine any difference in these judicial philosophies of these two judges?

JA - touche I guess. I'm not really familiar with Bush v. Gore or with courts in general - just pointing out that it's possible a priori for a judge to overturn a lot of legislation without being judicially activist as I understand the term.

Your original point was to come up with an objective metric for activism - I can't think of a way.

Leonard: I was going to make a similar point, but what that means is that in theory, what Sotomayor said ought not to be embarassing, if it is understood in in its limited sense. I personally suspect she is a mediocrity who is being elevated for racial-symbolic reasons, and probably agree with you that left judicial activists are producing more "97"s than conservatives are, for the reasons you stated. I would not vote for her. But it is a typical example of Mencius's penchant for overdramatizing/exaggerated interpretations of mundane events - such as using the fact that she expressed a special disapointment with Latino-on-Latino crime as a sign of some sort of sinister elevation of prejudice, rather than a mild confession of the fact that we are all a little ethnocentric and a little bit of that is good, in keeping communities cohesive etc. Mencius is almost Foucauldian in his identification of chains of political causality in everything (e.g. The media really runs the governent, because it can influence it. Black gangs are the democrats "private army" because democratic politicians evoke black anger and blacks vote democratic..etc.) All sense of proportion is thrown out in the service of a provocative entertaining argument. Which makes it fun to read, I admit....

Essentially, he felt like it. I recall an offhand statement about it in one of his more recent posts, though I forget/did not understand the content. Something about not wanting to be the kind of person who tries to herd the faithful, since he's not really going for the whole 'faithful' dynamic.

My own suspicion is that he can only respond to a fraction of the comments, which results in various nonsenses. Aware of this, he is satisfied saying his piece in the giant wall of text above this section.

Mencius actually stopped commenting long before the advent of Sibyl.

derrenbk said,

"But it is a typical example of Mencius's penchant for overdramatizing/exaggerated interpretations of mundane events - such as using the fact that she expressed a special disapointment with Latino-on-Latino crime as a sign of some sort of sinister elevation of prejudice"

So, how would someone with sinister prejudice, sincerely held, tend to say, so that we might contrast it with Sotomayer?

you've written quite a few posts suggesting that university education, even technical/scientific graduate education, is essentially worthless. so i'm questioning whether it's even worth it to pursue a formal education in programming.

is it books? or certain websites/software? i've found your methods for approaching econ and history/politics useful, so i'm wondering whether you had advice for your specialty of programming.

If you end up doing it for a living, you will learn by doing. It never stops. Language after language. Protocol after protocol. That's how you will actually learn. But then, there is much to be said for signaling, so the formal education doesn't hurt. I'd suggest that while you're learning to do the proper signaling that you also be learning by doing. Find a way to exercise practical applications of your work.

From where do you get your knowledge of how government actually works? I suggest that you should read the "Power Broker" by Robert Caro ( see a mini review of the whole phenomenon here ). Or read "Secret of the Temple" about the Federal Reserve. Check out pages 214-218. Here is a quote from Jimmy Carter about the Federal Reserve: "The Fed is independent of the President. It's just like the judicial system. I don't have any influence on it, but that doesn't mean I have to site mute. My own judgment is that the strictly monetary approach to the Fed's decision on the Discount rate and other banking policies is ill-advised."

The Fed is certainly not immune to political considerations. But it by no means reports to the president. The president has the power to nominate and re-nominate the Fed chairman, but the President does not have the power to review the Fed's decisions. In the case of Carter, the Fed simply ignored his complaining, because they knew that the recession would drive him out of office, and thus Volcker would not have to worry about re-appointment.

In many cases the civil service has huge discretion to make far reaching decisions without any need for approval from the President. In other cases, the civil service uses the fact that they do not need to be elected to make critical leaks, and use those leaks to control the president. In either case, the civil service as a whole is very, very powerful. ( note that Commander in Chief is one area where the President has real authority. I wouldn't be surprised to see the authority slowly stripped away in the next few decades.)

You learn programming by programming and by having its results reviewed. If you program stuff just for yourself, you will (probably) not be motivated to write anything major. Also your own code will suck and be undocumented because, you know how to maintain it, and you're not going to be passing it on to someone else to support.

What you want is a place wired up for programming, where you can make mistakes without the mistakes going on the resume.

So, yeah, some kind of educational facility is unavoidable for those starting out.

Ms Sotomayor (no relation to Ms Santamayor) has asked me to relate the following message to you:

Sir,

Your disparaging words regarding, my grammatical talents, and the fact my Boricuan heritage serves as the sole basis for my candidacy for justice on our most august court, have merely served to reveal your coarseness. Your sentence for this offense will be imposed by, a mob of my countrymen, who will knife you in your bed, presently. Good day, sir.

All this talk about the civil service being so powerful is interesting, but this makes it seem like: whenever political and career employees are in conflict, whoever is on the side of the NAMs wins. I am pretty sure the media are happy to keep it that way ... lending credence to the minorities-as-Stasi hypothesis.

"The reactionary's only feeling is sadness. USG is enormous and very old, and many, many people believe deeply that it is either intrinsically righteous or, if not, susceptible to reform. They certainly are not aware that it consists of a set of individuals who, whatever their actual IQs and grammatical skills, are moral 13-year-olds who think real life is a game of Fight Club."

Charming reactionary idealism! The truth is that real life is a game of Fight Club. Consider this equivalent substitution:

"[The House of Stuart] is enormous and very old, and many, many people believe deeply that it is either intrinsically righteous or, if not, susceptible to reform. They certainly are not aware that it consists of a set of [princes and bishops] who, whatever their actual IQs and grammatical skills, are moral 13-year-olds who think real life is a game of Fight Club."

Anon - I think the question of who prevails in a conflict between civil service and political appointees depends upon the issue. The discretion to prosecute is probably going to be political in as high-profile a case as the one cited. However, there are plenty of other ways in which civil service employees are favored.

One is the guaranteed lifetime tenure they enjoy in their positions. Civil service employees are not only shielded from being discharged for political reasons, but the law goes so far as to prevent them from being let go in general layoffs or as superfluous in the event that reorganization and consolidation of government departments make them so. Effectively, the only way the civil service can ever be reduced in numbers is by natural attrition and not replacing those who retire or quit.

An example of this was seen in the Reagan administration's unfulfilled promise to abolish the Bureau of Alcohol, Tobacco and Firearms. During the Carter administration there had been a scandal in the Bureau involving an illegal entrapment program designed to reduce the number of small businesses and individuals holding Federal Firearms Licenses. Rex D. Davis, the then-director of the Bureau, gave testimony about this before Congress that was in direct contradiction to other testimony given by his subordinates. Someone was clearly lying, and Davis resigned - only to become president of the National Association of Beverage Importers, a trade association for - surprise! - one of the industries regulated by BATF.

As a candidate, Ronald Reagan pledged to eliminate the Bureau, a popular promise in view of the scandal and the widespread mistrust of BATF amongst the important constuency represented by the National Rifle Association. Yet, after he was elected, Reagan found his hands were tied. Even if legislation were passed to abolish BATF, its civil service employees could not simply be laid off. Places had to be found for them. Reagan's initial plan, which was to transfer the criminal law enforcement function of the bureau to the FBI, and its regulatory compliance function to the Secret Service, was rejected, because the hiring criteria of the FBI and Secret Service would have excluded some of the existing BATF staff from employment with those agencies. In the end, the Reagan administration was compelled to keep the BATF because there was nothing else to be done with its employees.

Such guaranteed tenure in the long run ensures that career civil service employees will prevail over political appointees in the long term. Even if they experience reversals here and there in particular politically-charged situations, they have staying power that the holders of patronage posts do not. We may look for an example to the controversy over the Bush administration's firing of certain federal district attorneys. To be sure, the persons fired were patronage employees that served at the president's pleasure and not civil servants. However, what became evident as the controversy developed was that the fired district attorneys enjoyed the support of their civil service subordinates, whereas their replacements in most cases did not. The animosity of career employees in the Federal district attorneys' offices to the midterm appointees was an important source of publicity unfavorable to those appointees. It was significant to the resolution of the controversy, which ended in the resignations of U.S. Attorney General Alberto Gonzales and several of his subordinates. That was certainly a triumph both for the permanent government, and for what MM calls the Inner Party.

Yet, after he was elected, Reagan found his hands were tied. Even if legislation were passed to abolish BATF, its civil service employees could not simply be laid off.

Unless other legislation were passed altering the civil service system.

You're exactly right, don't get me wrong. The D House wouldn't have accepted it and the R Senate probably would not have either. The same thing is true of entitlements - they "can't" be changed because Congress doesn't want to.

Given that it is becoming clear that Congress can't change statutes that don't work, but the Supreme Court can change parts of the Constitution whether or not they work, it is clear that the only way to free the American worker (short of a Moldbuggian military coup) will be through lawsuits.

The next generation of rightist justices may not be so married to restraint; they may start fighting back. And then we'll find that civil service tenure violates the 14th Amendment, since if non-civil servants aren't protected by law from being fired, civil servants can't be either. And TANF and Social Security will be found to violate the 10th Amendment. A close reading of the 1st Amendment will reveal it doesn't bind state legislatures at all. Etc.

But why not just stick to the 14th Amendment? It says pretty much whatever the activists want to it to say. I'm tired of income tax law protecting lower-income people from paying as much tax as me. I want equal protection of the laws! I'm tired of males having to register for the draft but not women. Equal protection! I'm tired of hate crimes only being used against whites. Equal protection! (The last example I am completely serious about, BTW; hate crimes laws need to be struck down under the same reasoning SCOTUS struck down capital punishment for that brief period in the 70s.)

The key will be, to write about this only under pseudonym. Garrity never said ahead of time that he planned to become Urban Education Czar. Warren never said ahead of time that he planned to make the Supreme Court America's most important legislative authority. Why should admit that we are basically Butler/ McReynolds/ Sutherland/ van Devanter in "realist" clothing?

(No, I'm not a lawyer. I am fully aware I will not be a part of this.)

Jewish Atheist saidFind me a definition of "judicial activism" which does not include what the conservative justices did in Bush v. Gore or what they do when defending "executive privilege."

You must have confused this with a partisan Republican blog. If you want to interact with those people, for some unfathomable reason, you could try freerepublic.com."

There was also a good deal of that "so's your old man" that Mencius was talking about in JA's post. *Tu quoque*, indeed. I think the irony is lost on the poster, but I could be wrong. You're right about freerepublic - though I haven't browsed there in years, and, in fact, had forgotten they were still around till your post. When I think about it they are the perfect embodiment of the "Outer Party" in all its impotent glory. I wonder if the more rabid of them still sign off every post with "Eagles Up!"...

@prace, pwyll: i have no idea what prace is talking about, pywll is exactly right. mm's quoting croly's line "The consequence has been, however, a separation of actual political power from official political responsibility." is what made me think of the motto, and the rest of it seems in keeping with mm's attitudes in general.

Just Generally Angry:The next generation of rightist justices may not be so married to restraint; they may start fighting back.

Um, yes, but where will this next generation of rightist justices come from? Who will nominate and confirm them?

The only current rightist SCOTUS justice whom I could conceivably imagine fighting back is Clarence Thomas -- and there is no chance that anyone else with a similar philosophy could ever be nominated for SCOTUS. The likes of Scalia and Alito (let alone Roberts) might occasionally strike down some ludicrous novel expansion of the federal government, but there's no way they would ever try to roll back any of its well-entrenched powers.

Even with a Republican president and senate, there's no way anyone further to the right from Roberts or Alito could ever advance to higher levels of the federal judiciary. It would be like a closet libertarian working his way up to the Politburo in the USSR.

"Harvard University will endow a visiting professorship in lesbian, gay, bisexual and transgender studies, a position that, it believes, will be the first endowed, named chair in the subject at an American college."

Um, yes, but where will this next generation of rightist justices come from? Who will nominate and confirm them?

Well, people here are always talking about how winning the Presidency wouldn't accomplish anything for the right. I'm saying, sure it wouldn't, because rightists play fair too often. But rightists do win the Presidency from time to time ... it still seems more likely than a military coup. And more desirable than turning into the Union of American Socialist Republics.

Even with a Republican president and senate, there's no way anyone further to the right from Roberts or Alito could ever advance to higher levels of the federal judiciary. It would be like a closet libertarian working his way up to the Politburo in the USSR.

Technically, someone doesn't need any experience to be appointed to the Supreme Court.

To borrow from Pee Wee Hermann, every rightist has a big fat "but", at least for other rightists.

It would be great to sell our ideas to the public, take over the Congress and the White House, but when that happened (two-thirds) under Reagan and (two-thirds) under Gingrich, not much reform was made, and under Bush everything went in the wrong direction.

It would be great if the security forces read this blog, began denying the power of judicial review, and started enforcing a common-sense reading of the Constitution, but they don't.

It would be great if the Supreme Court spontaneously started using a common-sense reading of the Constitution, but stare decisis applies only to protecting leftist decisions, not rightist decisions.

It would be great if the Constitutional convention were to finally happen, and rightists were to be the in the drivers' seat, but if they were all they would care about is sex, not finance, judicial review, federalism, local people controlling the future of their communities, war powers, etc. We'd hear "even for rape and incest?!" and "wool whut about fer married couples?" a hundred times for every time someone whispered "10th Amendment".

Liberalism is the haunting fear that someone, somewhere may be a Puritan.

Just Generally A.:Technically, someone doesn't need any experience to be appointed to the Supreme Court.

Yes, but they must still pass through the SCOTUS nomination process. You're probably familiar with the verb "to bork" -- and the machinery that ruined Robert Bork in 1987 has gotten only stronger and more extreme since then.

Even someone like Thomas couldn't realistically pass nowadays. Look at the example of Janice Rogers Brown -- Bush barely managed to get her into the DC Court of Appeals, and didn't dare to nominate her for SCOTUS, choosing the bland Roberts and Alito instead. Of course, even these two and Scalia are viewed by the enlightened establishment as rabid right-wing extremists that make Joseph de Maistre look liberal, just because they'll occasionally write an opinion that picking your nose doesn't necessarily constitute interstate commerce.

Liberalism is the haunting fear that someone, somewhere may be a Puritan.

I agree with Mencius that liberalism (i.e. Universalism) is a mutation of Puritan Anglo-Protestantism, so I don't think your choice of words is accurate. Still, it is true that modern liberals are horrified to see any local manifestations of non-Universalism within the limits of the Western world (let alone the Anglosphere), and will promptly get to work to rectify those by any means available.

I'm not convinced that judicial review is such a bad thing, per se. I think its benefits are important - it would certainly be odd if the Supreme Court were required to uphold a law it felt to be unconstitutional. Something should exist beyond the level of a short-lived elected government to overturn bad law like the Tenure of Office Act.

Judicial restraint, textualism, formalism, etc., are of course vital to not letting American society turn into a creature of the Earl Warren oligarchy (all politics, no civic sector). It's my contention that the problem of judicial activism (or the delightfully self-congratulatory "judicial realism") is a problem mostly because of the way Federal officials in general are selected.

There's been a lot of support for the idea of selecting judges by competitive exam. They used to be used for the civil service (still are, I guess, though I never hear about them any more ... most "exams" turn out to be "submit your resume"). One advantage of this system is it alters who will self-select for judge service. Instead of show-offy people who will impress everyone with their "realism" and their "empathy" and their "being Puerto Rican", judgeship will be seen as a place for experts. This will naturally tend to attract formalists and textualists.

Who will create and grade the exam? My first impulse was: co-opt law school faculties, but I understand that university faculties are considered pretty unsound around here, with some reason. So how about, a court creates the exam that is used to select its new members.

Grading is trickier. Obviously it should be anonymous - this is how most law schools work - but picking graders will likely be the most controversial part of the process. It would probably be best to select graders the way juries are selected, only limit the possible pool to retired judges and lawyers admitted to the bar in the appropriate jurisdiction, and no one gets "kicked off" without cause.

Yes, but they must still pass through the SCOTUS nomination process. You're probably familiar with the verb "to bork" -- and the machinery that ruined Robert Bork in 1987 has gotten only stronger and more extreme since then.

Sorry, I should have made it clearer that I'm in agreement with you here. We have seemed to disagree only because I've been more counterfactual than you. The RINOs only liked Bork slightly more than the Inner Party. My only bone to pick has been with your phrasing; I'm picky about people saying "We can't" when they mean "We won't" ... is all.

"Liberalism is the haunting fear that someone, somewhere may be a Puritan."

I agree with Mencius that liberalism (i.e. Universalism) is a mutation of Puritan Anglo-Protestantism, so I don't think your choice of words is accurate.

Okay, well, consider:Puritans are freshmen.Liberals are sophomores.The dropout rate spikes upwards after the second year.(Silly anecdote-tangent. When I was in the 9th grade, it didn't surprise me that the 10th graders tripped us and called us names, but they did seem to display a genuine disappointment that there were any 9th graders ... like the existence of people a year younger was an affront to their dignity. Foreshadowing?)

RE: 'sinister prejudice' - are you serious? you can't think of anything worse than that? How bout, oh i don't know... "My allegiance is to my people and no one else. My goal is to enter this system and subvert it to the advantage of the Latino nation. The evil empire will be destroyed." or maybe "When a white person kills or gets killed i laugh, I mean that's one more dead white mf, or one more in prison haha" You know, something like that. :)

Just Generally Angry, you are of course right that altering the laws governing the civil service would have solved Reagan's BATF conundrum - and equally right that no such law could have passed at the time, or perhaps any time since.

There always have been theoretically-available means to contend with many of there issues. A great deal of the right-wing complaint about "judicial activism" could be addressed by Congress, if it had the testicular fortitude to do it. Article I, section 8 of the Constitution empowers Congress "To constitute Tribunals inferior to the supreme Court." Article III, section 1 establishes only the Supreme Court, and refers to "such inferior Courts as the Congress may from time to time ordain and establish." Section 2 of the same article provides that the Supreme Court shall have original jurisdiction only in cases involving ambassadors, other public ministers and counsels, and those in which a state shall be party; but in all other cases to which the general judicial power extends, "the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Accordingly, Congress constitutes the inferior courts and defines their jurisdiction. No case can be heard by the Supreme Court on appeal from an inferior Federal court, except it be one in which the inferior court has been granted jurisdiction by Congress. Further, the appellate jurisdiction of the Supreme Court is subject to such exceptions and regulations as the Congress may make it.

Congress has in the past exercised its authority to constitute inferior courts and to define their jurisdiction repeately.

For example, it constituted the Tax Court as a court of original jurisdiction in cases arising under the Internal Revenue Code. In spite of Amendment VII's requirement that "where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law," there is never a trial by jury in civil tax matters before the Tax Court, because the Internal Revenue Code is not deemed common law.

Another example of Congress's use of its authority to delineate the jurisdiction of Federal courts is seen in the exclusive delegation of controversies between labor unions and the managements of businesses to the National Labor Relations Board. Previous to the Wagner act it was not uncommon for businesses to seek injunctions against certain labor union activities affecting their properties. The Wagner act took that jurisdiction from the courts and assigned it to the NLRB, which is not even a court.

In the years since it has likewise endowed numerous other bureaucratic agencies with quasi-judicial powers to hear and decide matters arising from the exercise of their own regulatory authority.

It ought to be clear from the language of the Constitution and the history of Congress's actions under the authority granted it thereby, that - if it wished to do so - Congress could eliminate, by a simple majority vote, all 'judicial activism' over quite a number of the current culture-warfare issues. For example, it could enact that "no inferior Federal court shall hear any case arising out of state laws governing [abortion, the definition of marriage, capital punishment, private ownership and use of firearms - take your pick}." The Federal courts would then be deprived of jurisdiction in these matters, including the Supreme Court, because it does not have original jurisdiction over such cases, and cannot exercise appellate jurisdiction except over the decisions of inferior Federal courts.

Just because Congress can restrict the jurisdiction of Federal courts does not, needless to say, mean that it will. Politicians are predominantly lazy and cowardly, and it is hard to imagine them mustering either the vigor or the courage necessary.

Michael S.:It ought to be clear from the language of the Constitution and the history of Congress's actions under the authority granted it thereby, that - if it wished to do so - Congress could eliminate, by a simple majority vote, all 'judicial activism' over quite a number of the current culture-warfare issues.

I am not a lawyer, and it would require lots of research for me to even start finding my way through this mess. Even then, just look how often the above page refers to "conflicting readings", "cryptic, impenetrable opinion", and the like. So, I think the best guide would be to look at what happened on the actual historical occasions when the executive and legislature tried limiting the power of the Supreme Court.

The most important precedent of this sort is when FDR was looking for a practical way to sidestep the Supreme Court after it struck down the first wave of New Deal legislation in 1935/36. He and his clique studied their options very carefully, including the possibilities of limiting the SCOTUS appellate jurisdiction the way you describe. With all possibilities considered, the court packing plan turned out to be the most viable option. It turned out to be unnecessary, because Owen Roberts defected to the other side and Willis Van Devanter retired, thus turning the court into essentially a rubber-stamping committee for the rest of the FDR's tenure. We can only speculate if the packing bill would have passed otherwise. From what I know, during the debates it looked as if FDR would not be able to maintain the necessary party discipline; the prestige of the SCOTUS in the popular mind as the living embodiment of the Constitution was just too large. I don't think the situation has changed much in this regard since then.

Thus, I'm not sure what would happen if there was a conflict between a bill limiting the SCOTUS jurisdiction and the SCOTUS's own opinion about the constitutionality of this bill. It would certainly result in a nasty constitutional crisis that would shake the foundations of the whole system. Similarly, for example, the Supreme Court could theoretically rule tomorrow that fiat money is unconstitutional, and it would have every right to do so according to a common-sense reading of the Constitution (this is conceded even by many quite moderate jurists, not just by the lunatic fringe). Such cataclismically dramatic decisions by any branch of the government are unimaginable in practice. We're basically talking about the unwritten Constitution here.

Also, I would say that the practical importance of judicial activism in the U.S. is overestimated by most of the posters here. Some of the wildest flights of fancy in which SCOTUS has ever engaged were made in attempts to uphold federal legislation that blatantly contradicts the plain meaning of the Constitution. Here, of course, I have in mind primarily their post-1936 interpretations of the Commerce Clause. (I'll admit that Roe vs. Wade is perhaps even more preposterous than these cases, though.)

In any case, it's hard for me to think of any significant developments in the U.S. history that critically depended on judicial activism. I think this is true even for the judicial activism at the state level. At most, the courts will only push things ahead a bit in the direction in which the Zeitgeist is leading the system anyway. When a state court finds the constitutional right to gay marriage, it's not like they're legislating anything that wouldn't have eventually come about legislatively anyway.

Furthermore, for some of the major cases of egregious judicial activism, it's hard to argue from any perspective that they were bad on the net. For example, the fabled First Amendment rights to free speech are a product of pure pro-Communist and pro-hippie judicial activism in the fifties and sixties. Before these cases, it had always been understood as normal that both the state and federal governments may throw you in prison for obscenity or sedition on pretexts that may look shocking now, and might apply to lots of stuff written on blogs like this one. (Have you ever used "profane, scurrilous, or abusive language about the form of government of the United States" in a blog comment? That would be worthy of jail time according to the consensus of the U.S. constitutional law 90 years ago.) And let's not even get started about all the other restraints on the state governments based on the Bill of Rights that are also products of pure judicial activism through the fantasy called the "incorporation doctrine", and whose absence would open the way for some serious encroachments on all sorts of personal freedoms from all sides of the political spectrum.

You have been quite informative, Vladimir, as has the reliable Michael S.

Vladimir's UCLA link in response to Michael S. contained the tantalizing, "A court always has jurisdiction to determine whether it has jurisdiction. It may use this general power to strike down unconstitutional limitations on its jurisdiction." Interesting, but I think this rule couldn't be applied to two courts fighting over jurisdiction. In that case, I guess the higher court would prevail? Jurisdictional stuff always makes my head spin.

Before these cases, it had always been understood as normal that both the state and federal governments may throw you in prison for obscenity or sedition on pretexts that may look shocking now, and might apply to lots of stuff written on blogs like this one. - Vladimir

The bold section is what threw me. I thought the deal with the 1st and 10th Amendments was something like, 'sure the Federal government has to walk on eggshells around free speech, but the states have this general legislative authority and of course they'll use it to stop profanity, fighting words, anarchist bomb-throwing lessons, etc.'

I also thought that John Adams's Alien and Sedition Acts were just unconstitutional anomalies ... but it sounds like you're saying they would have be accepted as late as 1919! (My problem is I know way more about constitutional law than everyone I talk to, and much less than a lot of people I read on the web.) Thanks for the case citation; I hadn't heard of Schenck.

Oh well. I personally make way way more out of the 1st Amendment's bind-only-the-Federal government phrasing (and the 2nd's bind-all-government phrasing) than anyone I know. Also I'm always shaking my fist at the 1865 Repubicans for having phrased the 13th Amendment that way if they didn't intend it to abolish the draft; I have a devil of a time as a formalist trying to figure out how being conscripted isn't "involuntary servitude". (I suspect being a formalist would have sunk me had I gone to law school.)

To be fair, such drastic measures like the 1918 Sedition Act were evoked only during wartime and, to a lesser degree, during major moral panics such as the early 20th century anarchist scare. However, before the 1950s there was a general consensus that as far as the federal constitution is concerned, all levels of government had the power to criminalize seditious speech, let alone obscenity.

The SCOTUS precedent that upheld Schenk's conviction was in fact followed by several even less liberal decisions! In Debs v. U.S., SCOTUS found that sedition laws are also applicable indirectly on the grounds of intent and implication, against speech carefully crafted to comply with them technically. This was followed by Whitney v. California in 1927, which further restricted the admissible First Amendment defenses.

Some other convictions under the 1917 Espionage Act and the 1918 Sedition Act were even more extreme. The filmmaker Robert Goldstein was imprisoned by the federal government under the 1917 Act because he made a movie about the American Revolution, which was deemed to undermine the war effort by fostering anti-British sentiments! Goldstein couldn't even plead a First Amendment defense, because movies in general were deemed in a previous unanimous (!) SCOTUS precendent to be outside the scope of any First Amendment protections. (I'm not sure when this precedent was overturned, but it was probably during the same activist onslaught after WW2.)

Also, it should be mentioned that communists and hippies weren't the only ones whose prosecution led to the presently binding First Amendment precedents. There was also Brandenburg v. Ohio, an important precedent that struck down the conviction of a Klansmen who was prosecuted for spreading seditious hate propaganda under the Ohio state law. Whatever one might think of them otherwise, the Warren court indeed made no compromise on the free speech principle. Of course, that still makes them extreme activists relative to the earlier First Amendment jurisprudence.

Correction to the above post: the 1927 Whitney precedent was a challenge to anti-sedition laws based on the Fourteenth Amendment, not First. However, it did reduce the constitutional basis for challenging anti-sedition laws even further.

Blode0322:Also I'm always shaking my fist at the 1865 Repubicans for having phrased the 13th Amendment that way if they didn't intend it to abolish the draft; I have a devil of a time as a formalist trying to figure out how being conscripted isn't "involuntary servitude". (I suspect being a formalist would have sunk me had I gone to law school.)

I also wanted to comment on this. I've read texts of various portions of the constitutions and laws of several countries, and I've always been struck by how awful their phrasing tends to be. They often read as if they were drafted by people incapable of any logic or common sense, who wouldn't bother even to stop and think for a minute about the coherence and logical implications of the plain meaning of what they wrote. For someone with a background in math or some other area where the language must adhere to iron logic, it's often painful to read these verbal atrocities.

The U.S. Bill of Rights is pretty awful in this regard. Its text doesn't even specify whether it applies only to the federal government or to the states too. That, as you say, the First Amendment mentions the Congress specifically and others don't, just adds to this confusion. At the time, of course, the consensus was that the amendments apply only to the federal government -- the incorporation doctrine, supposedly backed by the 14th amendment, was made up out of whole cloth two generations after this amendment was passed -- but still, how could these people be so sloppy? Among the subsequent amendments, the 13th and the 14th stand out by their sloppiness and vagueness, which enables almost anything to be read into them even without very much of a stretch. (Of course, in Roe and other cases, SCOTUS hasn't resisted the temptation to stretch them still further beyond all reason.)

Even the original Constitution contains lots of horribly vague language and gaping logical holes. I mean, how brilliant is the idea to form a union of states without addressing the issue of secession at all? (By the way, the Confederate Constitution was mostly a word-for-word copy of the U.S. Constitution, and it did't say anything about secession either, because the Confederates wanted to make a point that the right to secession was already implicitly guaranteed by the U.S. Constitution.) There are also many other issues on which the language is missing or hopelessly vague, from the silence about judicial review to the cryptic phrases about "general welfare", "necessary and proper" laws, etc., etc.

Overall, the U.S. Constitution in its entirety is definitely not something a formalist could work with.

I also wanted to comment on this. I've read texts of various portions of the constitutions and laws of several countries, and I've always been struck by how awful their phrasing tends to be. They often read as if they were drafted by people incapable of any logic or common sense, who wouldn't bother even to stop and think for a minute about the coherence and logical implications of the plain meaning of what they wrote. For someone with a background in math or some other area where the language must adhere to iron logic, it's often painful to read these verbal atrocities.

I agree. I also can't stand how the constitutions of so many parliamentary systems make it so unclear who does the arguable important business of picking the head of government. A lot of them make the president sound as responsible - as much of a decider - as the President of the United States is in picking cabinet members. Yet it is always assumed that the parliament will at least determine the political character of the premier, or more commonly pick the actual individual. (Old monarchies get a pass here, since their parliaments are often the product of evolution rather than design.)

Compare France to the US, and compare their Premier to our Secretary of State. Both are appointed by the president, ours with the advice and consent of the Senate, theirs with obvious attention to the National Assembly. The only thing that makes the US Constitution formally different in this regard is "high crimes and misdemeanors". Why? Because that's what impeachments are supposed to be for. The French Constitution provides for "censure" rather than "impeachment" ... they have the same dictionary meaning, the French process is technically easier, but it is implied that the French legislature can get rid of Premiers for ideological reasons, it is implied that is not okay in the US.

The U.S. Bill of Rights is pretty awful in this regard. Its text doesn't even specify whether it applies only to the federal government or to the states too. That, as you say, the First Amendment mentions the Congress specifically and others don't, just adds to this confusion. At the time, of course, the consensus was that the amendments apply only to the federal government

I'm channeling Gore Vidal, but really everyone should just do as I say. :)The 1st applies only to Congress, 2nd through 9th to all levels. Evidence: Connecticut had a state religion until the 1820s. Advantage: if a state has free speech laws you don't like, you can bloody well move. If they messed with your 4th Amendment rights, they'd have taken your horse so you couldn't move; if they messed with the 6th, they could just hold in prison forever.

As far as the 2nd goes, if it doesn't apply to the states, that's pretty weak, because Article I Section 8 already gives Congress a lot of power over the militia ... if Congress provides that the militia is armed with 14-gauge muskets and a state outlaws 14-gauge muskets, then...?

cont.I mean, how brilliant is the idea to form a union of states without addressing the issue of secession at all?

Yes, that was a costly oversight. The Articles of Confederation speaks of "perpetual union", IIRC, but not all states signed that. Myself, I think the right to secede is implied, but I'm old-fashioned enough to regard a law imposed by the force of arms to be real law.

There are also many other issues on which the language is missing or hopelessly vague, from the silence about judicial review to the cryptic phrases about "general welfare", "necessary and proper" laws, etc., etc.

Those don't bother me too much. They sound more like advice. "General welfare" in particular sounds like a term you'd use to describe legitimate government expenses when there was no other term coined. I.e., 'Congress has the power to lay and collect taxes, but not to buy palaces for kings, only for goodly republican expenses stemming for the powers we're about to enumerate.' A case could be made that expenses like military and civil pensions, decorating the White House, etc., should be paid out of a endowment type thing, rather than taxes. (To say nothing of thoroughly unconstitutional spending like foreign aid, food stamps, etc.)

I also can't stand how the constitutions of so many parliamentary systems make it so unclear who does the arguably important business of picking the head of government.... (Old monarchies get a pass here, since their parliaments are often the product of evolution rather than design.)

I take that last part back. One of those old monarchies was Iran, which messed up a lot more than its own domestic politics by making it unclear whether or not the junior Shah Pahlavi had the right to fire Mossadeq. If tradition says: parliament (effectively) picks the prime minister, who controls domestic policy,the Shah formally appoints the PM,the Shah (formally and effectively) picks the minister of war, who controls security policy, then does the Shah have the right to fire the PM for trying to pick the MoW? (Some of the above assertions may have been matters of law rather than tradition, I'm a bit fuzzy on the details.)

It wouldn't be such a big deal if this important questions weren't so thoroughly glossed over by the people who say "President" Mossadeq's government was "legitimate" before it was "overthrown" by the CIA before they "installed" the Shah. [rant over]

The prologue, describing the broad goals of the Constitution (e.g. "general welfare") has never been considered to be legally binding -- "general welfare" is not an enumerated power and the Court has never justified any Fedgov power based on a "general welfware" power. The three big loopholes in the U.S. corporate charter are "commerce among the several states", the "necessary and proper" clause, and the taxing and spending powers (which are used to impose conditions on States). No creative interpretation is needed with the income tax amendment which along with the Federal Reserve greatly increased the power of Fedgov (in turn leading to creative broadenings of the three big loopholes).

Vladamir has a very good view of the incorporation doctrine. Interestingly, the Supreme Court very seldom enforced the Bill of Rights against the federal government until the incorporation doctrine was born and it started enforcing most of the Bill of Rights against the states. I describe the reason for this curious phenomenon here.

Vladimir, I think it is still the case that Congress could use its constitutional authority to delimit and regulate the jurisdiction of Federal courts IF it had the 'testicular fortitude' - and the votes - to do so.

FDR in his frustration with the Supreme Court indeed did not try to make use of this constitutional authority, but in all probability the reason was that Congressional support for the New Deal measures the Court had previously rejected was waning by that time. Many of the latter were unpopular, not just with the "economic royalists" he loved to denounce, but amongst small-business men and farmers. By the later 1930s these people had the attention and sympathy of many in Congress. As president, he could not delimit the authority of Federal courts; and he did not attempt to get Congress to act in this way. The question is whether it would have done, if he had pressed for it. Roosevelt was nothing if not a calculating politician, and he tried to pick his fights carefully.

The ability of Congress to constitute and regulate the jurisdiction of inferior Federal courts, when it wishes, is certainly shown by the creation of the Tax Court and the stripping of Federal district courts' jurisdiction over labor actions under the Wagner act. That no jurisdiction-stripping has taken place with relation to the cultural warface issues mentioned, just as no alteration in the protections enjoyed by civil service employees has taken place, first and foremost reflects the lack of Congressional will to act on such matters.

What might happen if Congress did act on them would, I suggest, depend mostly on how firm it was prepared to be after so doing. Let us observe that the Constitution's vaunted separation of powers is inherently unstable. Montesquieu idealized the British constitutional monarchy of the eighteenth century, which he viewed through the fog of the English channel. The political theory based on this hazy perspective was translated into action in our Constitution, under which the President was a sort of Hanoverian monarch for a fixed term, the Senate a sort of house of Lords, the House of Representatives a sort of Commons, and the Supreme Court a combination of the British high courts of common law and chancery with the ultimate judicial power enjoyed by the Law Lords.

The instability of the British eighteenth-century separation of powers was resolved two centuries later in favor of the supremacy of Parliament, the monarch becoming a figurehead and the courts strictly subordinate. The American eighteenth-century separation of powers has been, at least so far, resolved in favor of the supremacy of the Federal judiciary, and, beneath it, a permanent bureaucracy partaking equally of executive, legislative, and judicial authority. Whether this is a permanent resolution seems to be largely dependent upon the continuing inertia of Congress. Will it awake to its potential authority before that is taken from it forever, as that of the Merovingian 'rois fainéants' was by their mayors of the palace?

Michael S., the supremacy of Parliament is the result of the ideology of (in temporal order of influence) Ulpian, Tribonian, Bodin, Hobbes, Rousseau, Austin, and Bagehot that government must be a master/servant hierarchy, and thus there must be a single master or "locus of sovereignty" (traditionally in the emperor or king, but after Rosseau also in a legislative body). In fact, the Venetian Republic existed for nearly a millennium with a very stable system of distributed power -- what Scott Gordon calls "countervalence" as opposed to internal sovereignty. The Roman Republic, described by Polybius and Cicero as countervalent, lasted for over four hundred years. The system of political property rights (as opposed to a master/servant hierarchy) existed in medieval Europe for hundreds of years. England/Britain during its peak years of relative economic growth (1588 through the awful "reforms" in and after the 1840s) had a well distributed power (described by many people more accurately than Montesquieu, including by Charles I himself, who famously argued _against_ the sovereign power of Parliament, _not_ in contrast to his father James in favor of monarchical sovereignty).

Thus many governments, and the best and most stable governments in history, have had a system with no locus of sovereignty: lawmaking, law enforcement, and dispute adjudication in these systems were quite distributed and often dealt with each other as fellow property owners rather than as master and servant. In contrast, the Roman Empire, where the absolutist ideology comes from, was notoriously unstable, racked with civil wars, assassinations, and massacres throughout its history (including the tenures of the legal jurists from whom we get this ideology, Ulpian and Tribonian). Nazi Germany and the Soviet Union were similarly unstable and cruel under legal procedures and and absolutist philosophies descended from those of the Roman Empire.

The corollary to Lord Acton's observation is that absolute power creates absolute disruption: there is only one big lottery prize and large numbers of people are willing to gamble their lives and throw away the lives and properties of their fellow citizens, and with it the rule of law, in order to win or keep it.

The idea that distributed power is inherently unstable is part of the absolutist ideology that comes to use from the ancient Roman Empire via Bodin, Hobbes, Rosseau, Austin, and Bagehot. It doesn't correspond to historical reality, and it has caused more pain, suffering, poverty, and death than any other ideology in history. This ideology is the real Cathedral: it has dominated universities since their formation as schools teaching the law codes of the genocidal Roman emperor "Justinian" (drafted and compiled by his servant Tribonian) in and after the 12th century.

Nick, of course you're right about Venice. Its governance by distributed power was not, however, equivalent to the separation of powers as conceived by Montesquieu and embodied in the U.S. Constitution.

The ideal of Montesquieu was in fact a reflection of the unstable settlements reached first by the restoration of Charles II, then by the "Glorious Revolution," and finally by the Hanoverian succession. All were the consequences of tumults in the state and contained seeds that matured into further tumults.

The gradual decline of monarchical power and the rise of parliamentary power in Britain after the Hanoverian succession was due to illiteracy (in English, on the part of George I); indifference (George II); insanity (George III)l; inebriation (George IV); and ineptitude (William IV). By the time Victoria came to the throne, Parliament had squatted for so long on the monarchical prerogatives as to have obtained most of them by adverse possession.

The rise of monarchical absolutism in Britain was itself a phenomenon of only a couple of centuries. I suppose if one had to identify its beginning, it would be with Henry VII, but he and the succeeding Tudors always acted gradually and carefully, with nominal respect for old institutions (excepting the Catholic church temp. Hen. VIII). By the time of the Stuart succession, absolute monarchy was a fashionable concept. Lord Dacre's (Hugh Trevor-Roper's) essay on "The General Crisis of the Seventeenth Century" is quite helpful in understanding how the rise of the courtier class and the expense of monarchies led to very different results in Britain and in France, but in both circumstances with the consequence that the old system of distributed power and political property rights that had prevailed through the middle ages was fatally undermined.

Apropos of Justinian and the Roman law, Trevor-Roper made the interesting point that the Christianity of the so-called Dark Ages discouraged the belief in witchcraft as a relic of paganism, and Charlemagne forbade prosecutions of purported witches. Only after the rise of Roman law, through the universities, as you recount, was the belief in witchcraft revived, and the bizarre witch-craze with its horrific persecutions followed.

nick:The prologue, describing the broad goals of the Constitution (e.g. "general welfare") has never been considered to be legally binding[...] The three big loopholes in the U.S. corporate charter are "commerce among the several states", the "necessary and proper" clause, and the taxing and spending powers (which are used to impose conditions on States). No creative interpretation is needed with the income tax amendment...

This is incorrect. You're forgetting about the other "general welfare" clause -- the one in Article 8, Section 1. "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." It's the combination of this clause and the income tax amendment that gave the federal government another way to circumvent the enumeration of its powers by first taking as much money as it wants and then giving it back to the states with conditions attached.

Before the New Deal, even after the passage of the income tax amendment, SCOTUS struck down several attempts at violations of federalism using the powers of taxation. See e.g. Bailey v. Drexel from 1922. (In some earlier cases, though, SCOTUS upheld similar federal punitive tax laws aimed at restricting drugs and firearms.) However, since the New Deal, the interpretation of the above mentioned "general welfare" clause has been widened just like with the interstate commerce clause, thus hammering another nail into the coffin of the Tenth Amendment. The current precedent, I think, is South Dakota v. Dole from 1987, which upheld the imposition of the national drinking age by attaching it as a condition for states to receive their full share of the federal highway funds.

It's the combination of this clause and the income tax amendment that gave the federal government another way to circumvent the enumeration of its powers by first taking as much money as it wants and then giving it back to the states with conditions attached.

Indeed. Amendment 16 could have been written,"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. We obviously don't think this tax rate will get very high, and we're so sure of that that we won't even waste the ink on, say, a 25% maximum."

Progressives. Sheesh.

Now that I've got you guys here, can you guys tell me a little about capitation? It's been described as the same as a head tax, but it doesn't look that way to Mr. Junior Formalist here.

Capitation looks like a tax state governments must pay to the Federal government in proportion to their population. How they come up with the money is their own business - it could be sales, income, head, property ... any tax except tariffs.

Head tax looks like a tax any government puts directly on people, where each person has to pay the same amount. It is synonymous with a poll tax, which sounds like something you have to pay to go to the polls (vote), though IIRC "poll" in this case just means head, and states were more likely to use literacy/ property/ race/ sex as suffrage qualifications than a poll tax. (It is also has etymology in common with "capitation", but it still doesn't seem to my untrained reading that they were used the same.)

So ... questions:Were Federal capitations common? ... a big source of funds? ... levied on states in the "you get the money however you want" way, or on people in the "head tax" way?

If the framers had been gung-ho for separation of powers, they could have left out:- the President's veto power- the Senate's advice-and-consent power over executive appointment- the Vice President's executive form / legislative function thingamajig

They could also have made two capitals, but I think that would have been unprecedented for the time (the only other examples I can think of are South Africa, Bolivia, and Saudi Arabia).

Had the Senate been gung-ho against separation of powers, they could have started a very strong tradition of withholding consent from anyone they hadn't advised the President to pick. They would still presumably lack power to simply fire executive branch people, resulting in a sort of parliamentary hybrid. (Then again, the Constitution itself is silent on who can fire cabinet members, though it's obvious to me.) Odd as this may sound, it does seem consistent with the Presidents power to require in-writing opinions from the officials ... the latter position sort of puts Pres at arms length from the cabinet, i.e., it's not his cabinet.

Granted, this would require a Senate both very jealous of its own power and with few members likely to side with the President over their colleagues. The latter is a little tricky, the former, certainly not. Traditions are taken seriously; the opposite practice - refraining from advice or seriously considering rejecting cabinet nominees - is quite the rule even for the jealous Senate. This is because of the extraconstitutional notion of the President as chief policymaker and team leader.

I'm not gung-ho either way on separation of powers, really (the issue I really care about is federalism). The President is a strangely idiosyncratic institution. What's up with executive orders? Or rather, what's up with people who think they are weird and/or unconstitutional? To me they just seem like the same thing Presidents have always done, only EOs are have a standard format.

If the President is taking care that the laws are faithfully executed, it sounds like the Constitution is saying his interpretation is law until it is overturned by a court, or until the law is amended. There's really no need to complain that statutes are too vague (though this is a very common complaint) if there is as much trust in the President as there is in Congress. Granted, most of these decisions aren't going to be made by Pres or cabinet or subcabinet, but career officials, but we've already been through that.

The point is, executive power is one of the most poorly-understood parts of the Constitution. People really don't know what the President does ... most people think "fix the economy" is high on his agenda.

This one seems more a problem for other people than for the formalist. It seems like Congress's power over who we fight is no more or less than its power over any other policy area. The President has no power to attack some country without legal authorization than he does to outlaw interstate trade in grumblecakes or something.

The argument is made that you can't wait for a law to authorize each troop movement, but of course you wouldn't wait for a Presidential order for each troop movement either. There is no law saying which species are endangered; a bunch of Presidential appointees vote on which are endangered, because a law tells them to do so.

People have asked, "Can Congress declare peace? If not, what stops the declaration of war?" For a long time, I thought the answer was, "a treaty". But Article I Section 8 mentions declaration of war next to all sorts of other powers which take the form of thoroughly ordinary Federal statutes. It's no big mystery who can repeal a statute, or how.

It is my formalistic conclusion, then, that the declaration of war is a statute, like any other, not a mere "Check box 'yes' or 'no' for war status" which confers untold powers on the President. The formalist must conclude that a war declaration is a law like any other. To hell with the President's "general warmaking power". He has powers granted to him under specific laws only. They don't have to, and should not, be straightjackets - they should give the President wide latitude - but they still need to be written. (I agree that the legislative veto in the War Powers Act is a problem, but I think some law along those lines is necessity.)

Vladimir, you're right that the phrase "general welfare" is mentioned a second time as one of the things Congress may _spend_ for, as opposed to _legislate_ on. In contrast to the phrase's appearance in the Preamble, its mention in Article 1 Section 8 is legally binding as defining the scope of the spending power.

If the phrase "general welfare" was a legislative power, there would never have been any need to broaden the scope of the Commerce Clause, as the power to legislate "for the general welfare" would have been interpreted as a practically unlimited power, as it has been in other countries' constitutions. Lacking a legislative general welfare clause, the U.S. courts had to be far more creative.

I mentioned that the taxing and spending power is one of big loopholes, via imposing conditions on the states in exchange for revenues (which is what _South Dakota v. Dole_ is about). These conditions effectively give Congress a degree of power to legislate _indirectly_ , or as the Justices in that case put it, use "indirect encouragement of state action" via attaching strings to monetary grants to states. A power much amplified by the income tax, as we both observed. (Sometimes states do reject revenues with too many strings attached, as we have seen some states do recently with some stimulus funds, but the income tax allows such big chunks of revenue to be taken out of states and doled back with strings that the strings are usually accepted).

Blode0322, "separation of powers" implemented properly is not about a strict separation of the pure categories legislative/executive/judicial, but of creating a working system of checks and balances. It's a strategy of required conspiracy or mutual veto where if two branches abuse their powers a third can still stop the abuse. So, for example, to pass a law requires the President as well as majorities in the House and Senate to agree (or at least 2/3 of the latter two). And even if a law passes those hurdles, the federal judiciary still has a chance to declare it unconstitutional when executed.

This worked better back when the Senate was elected in a very different manner than the House, so that popular opinion pressuring the House would not necessarily also pressure the Senate. It would also, as you suggest, work better if these branches were physically distributed in different parts of the country, rather than all living in the same fetid monoculture of Washington D.C.

A similar principle, _separation of duties_, is an important part of commercial corporations. More here.

What's up with executive orders? Or rather, what's up with people who think they are weird and/or unconstitutional?

It's quite constitutional for the President to give orders to his staff and the army. It's quite unconstitutional for him to give orders to other citizens -- that is tantamount to unilateral legislation in defiance of Article II and the legislative process I have just described. The President is the "commander-in-chief" of the armed forces, not of the country: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

xecutive power is one of the most poorly-understood parts of the Constitution.

No disagreement from here.

the declaration of war is a statute, like any other, not a mere "Check box 'yes' or 'no' for war status" which confers untold powers on the President.

Which brings up a crucial issue which the Court has long neglected, the Non-Delegation Doctrine. That is to say, statutes might be worded so broadly that they constitute an improper delegation of Article II legislative authority from Congress to the Executive branch. The Court allows very broad such delegations these days, to where many executive agencies produce streams of regulations that are effectively legislation, but it wasn't always so.

It's quite constitutional for the President to give orders to his staff and the army. It's quite unconstitutional for him to give orders to other citizens -- that is tantamount to unilateral legislation in defiance of Article II and the legislative process I have just described.

Oh dear, yes, unconstitutional to give orders to other citizens. Check. I haven't read all the executive orders, but the ones I have read were pretty innocuous.

Are any of the dark whisperings true? Are there EOs that allow the President to, you know, set up a curfew in your town, eat your breakfast, etc.?

nick:If the phrase "general welfare" was a legislative power, there would never have been any need to broaden the scope of the Commerce Clause, as the power to legislate "for the general welfare" would have been interpreted as a practically unlimited power, as it has been in other countries' constitutions. Lacking a legislative general welfare clause, the U.S. courts had to be far more creative.

This is true. Hence the two distinct major techniques for federal legislative power-grabbs have emerged: direct usurpation of legislative powers based on a preposterous interpretation of the interstate commerce clause, and the hijacking of state legislatures via conditional handouts of federal money, based on a slightly less preposterous interpretation of the general welfare spending clause. The first one is easy to wield, but still not entirely unlimited in its scope, whereas the other one is more complicated to pull off, but enables the federal government to hijack the entirety of state powers.

It's interesting to note that one other technique used to exist, whose disappearance is indicative of how far the other sorts of power-grabs have advanced. I have in mind the technique of prohibiting things by punitive taxation of all related transactions, which is, for example, how the first attempts at federal drug prohibition were made. (Before the New Deal, SCOTUS had a mixed attitude towards this sort of thing, and struck down some such attempts, as in the above cited Bailey v. Drexel, but upheld certain others.) Nowadays, however, this technique is unnecessary, because the present interpretation of the commerce clause based on Wickard and Reich empowers the Congress to criminalize the simple possession of anything.

There are of course other important federal power-grabbing techniques. For example, merely combining the income taxation with a flexible (and not even insanely so) interpretation of "general welfare" has opened the way for Social Security, Medicare, etc. But the above described ones are directly aimed at eliminating the explicit constitutional limits on the federal legislative power.

Mike S., that is an interesting comment about Roman Law and witchcraft. The main tie between the two seems to be captured in this quote from Lord Dacre: "the rise and decline of the European witch-craze corresponds generally with the rise and decline of judicial torture in Europe", said torture being justified under the Roman law revived in the 12th century. Unfortunately, some even more hideous aspects of Roman procedural law survived into the 20th century, such as the idea of government as a master/servant hierarchy with the master absolute.